The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK (In the matter of an appeal under Section 374 of the Code of Criminal CRA No.116 of 2001 Procedure, 1973) Baikuntha Nath Choudhury ……. Appellant -Versus- State of Odisha ……. Respondent For the Appellant : Mr. Biswa Kumar Mishra, Advocate For the Respondent
Legal Reasoning
: Mr. Sarathi Jyoti Mohanty, Additional Standing Counsel CORAM: THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 22.07.2025 : Date of Judgment: 31.07.2025 S.S. Mishra, J. This appeal is directed against the judgment and order dated 03.05.2001 passed by the learned Additional Sessions Judge-cum- Special Judge, Jeypore in T.R. Case No. 21 of 2000 (arising out of T.R. Case No. 137 of 1997), whereby the appellant Baikuntha Nath Choudhury was convicted under Section 7(1)(b)(ii) of the Essential Commodities Act, 1955 (hereinafter referred to as ‘the Act’) for contravening Clause 3 of the Orissa High Speed Diesel (Dealers’ Licensing) Order, 1979 and sentenced him to undergo rigorous imprisonment for one year and to pay a fine of Rs. 1,000/- (Rupees one thousand), in default, to undergo further rigorous imprisonment for one month. 2. Heard Mr. Biswa Kumar Mishra, learned counsel appearing for the appellant and Mr. Sarathi Jyoti Mohanty, learned Additional Standing Counsel appearing for the Respondent-State. 3. The prosecution case originates from an incident dated 05.03.1997 at about 11:45 A.M., the Marketing Inspector, Boipariguda, along with the Assistant Civil Supplies Officer (A.C.S.O.), Jeypore and another Marketing Inspector visited the grocery shop of the appellant situated at Boipariguda. The raiding officials found the appellant present in his shop and allegedly selling high speed diesel to customers, without possessing any valid permit or licence for such sale. 4. Upon demand, the appellant failed to produce any valid licence. Consequently, 160 litres of high speed diesel, contained in a drum, were seized from the spot. A written statement allegedly made by the Page 2 of 10 appellant confessing to selling diesel for the past month was also recorded. The seized diesel was then handed over in zima to one Biranchi Narayan Patra (P.W.1). A prosecution report was submitted against the appellant under the relevant provisions of the Essential Commodities Act. 5. During trial, the prosecution examined five witnesses to establish the seizure and the alleged unauthorized dealing in diesel. P.W.2 (Rabindranath Suaro) and P.W.3 (Monoj Kumar Das), the Marketing Inspectors, and P.W.5 (Padmalochan Nayak), the A.C.S.O., formed the raiding team and supported the prosecution case in material particulars. P.W.1 and P.W.4 were cited as seizure witnesses. 6. The appellant, in his statement under Section 313 Cr.P.C., took the plea of complete denial. He contended that he neither owned nor operated any Dhaba at the spot and that he had been falsely implicated by the Marketing Inspector (P.W.2). It was also contended that the seized articles did not belong to him, and no conclusive proof was furnished by the prosecution to establish his ownership or conscious possession over the premises or the articles. Page 3 of 10 7. The defence plea was one of total denial. The appellant contended that though he ran a grocery shop at Boipariguda, he was not dealing in diesel. It was the case of the defence that the seized diesel belonged to D.W.1, Nrusingha Charan Sahu, a truck driver, who had temporarily kept the drum containing diesel near the appellant’s shop and asked the appellant to keep an eye on it. D.W.1 was examined to corroborate this version but failed to produce any documentary proof (such as a purchase receipt) to substantiate his claim. 8. On evaluation of the evidence, the learned trial court relied on the alleged confessional statement (Exhibit 3) made by the appellant to the Supply officials and found the prosecution version to be trustworthy and consistent. The learned trial Court disbelieved the defence version, held the appellant guilty of contravening the licensing order, and imposed the sentence mentioned above. 9. The trial Court, after credible analysis, has arrived at the following finding- “(7) It is in nutshell the evidence led on behalf of the prosecution regarding the seizure of diesel from the accused. The plea of the accused in this case is that Page 4 of 10 though he owns and runs a grocery shop at Boipariguda he was not selling diesel. Rather the diesel was kept in front of his shop by another person. This being the case there appears to be no impediment in coming to the conclusion that on 5.3.97 diesel was in fact seized from in front of the shop of the accused under seizure list Ext.1. The question now remains to be seen whether the accused had purchased the same or it belong to Nursingha Charan Sahu. In this regard the prosecution relies on the statement made by the accused before the Marketing Inspector. Ext.3 is the written confessional statement duly signed by the accused. Ext3 reads that the accused have a grocery shop at the main road which was opened since last one month and that he is selling diesel in his shop in retail which he was bringing from Jeypore. He had no authority/permit/licence for sale of diesel. The accused has signed his name in English on Ext.3 which is marked as Ext.3/1. In order to prove that the diesel belong to Nrushinga Charan Sahu he has been examined as a witness for the defence. The witness has stated that he the accused who has a Kirana shop at knows Boipariguda. The witness was managing the affairs of the truck of one Umashankar and in course of such management on 5.3.97 he has purchased diesel from Jeypore and taken it to Boipariguda. He further stated that at Boipariguda as his house is at a distance he kept the diesel by the side of the shop of the accused and then went to fetch some labourers to carry it. The witness has further stated that on his return to that place he found that Supply officials had already started a case against the accused. The witness went to the Supply Inspector and stated him that he has purchased the seized diesel, but the Inspector did not listen to him. He further stated that as there was no authorised dealer of diesel at Boipariguda he had to purchase the same from Jeypore to carry it to Page 5 of 10 Boipariguda. The witness has been cross-examined by the prosecution and in the cross-examination he has stated that on that he had purchased 200 litres of diesel from Kodi pump which was transported to Boipariguda in a drum in their own truck. But as the truck could not approach his house the drum was kept by the side of the shop of the accused. Though the witness has stated that he purchased the diesel under a money receipt no such receipt was filed on behalf of the defence to show that the seized diesel was in fact purchased by D.W.1. Thus from the entirety of the evidence led by both the sides, it is evident that the accused is running a grocery shop at Boipariguda and from the premises of his shop high speed diesel measuring 160 the Supply Authorities. The accused has stated before the Supply authorities that he was selling the diesel in retail for the past one month. Such statement of the accused before the Supply officials shall be admissible in evidence as Supply officials cannot be termed as police officers to attract the bar of Section 25 of the Indian Evidence Act. No material has been brought out in the cross-examination to show that such written confession was caused by inducement, threat or promise. Hence, I am inclined to hold that the confession made by the accused as evident from Ext.3 is true and voluntary. This is because three responsible public officials have stated that the accused had made a voluntary statement about the retail business he was carrying on. Accordingly, it is held that the prosecution has proved that the accused was carrying on business of dealing in high speed diesel without any proper licence.” litres were by 10. Assailing the impugned judgment, learned counsel for the appellant, after arguing the matter on merits and law, chose to confine Page 6 of 10 his submission to the quantum of sentence. It is submitted that the alleged incident dates back to 05.03.1997 and the appellant has since then undergone the rigors of the criminal justice system for nearly three decades. The trial concluded in the year 2001, and the appeal has remained pending since then. The long pendency of this matter has, in itself, been an agonizing ordeal for the appellant, who was barely in his 50s at the time of the alleged offence and is now around 75 years of age. 11. Having heard both sides and on careful examination of the evidence and materials available on record, this Court is of the view that the prosecution has succeeded in establishing that the appellant was in possession of 160 litres of high speed diesel outside his grocery shop and had no valid licence to sell or store such petroleum product. 12. However, the Court cannot be unmindful of the surrounding mitigating factors. The quantity of diesel involved was not beyond the non-licensable limit under the Petroleum Act, 1934 (i.e., below 250 litres), and there was no evidence of commercial scale storage or trade. No independent purchaser was examined to establish the existence of a regular business. The seizure was made in 1997, and the appellant, now Page 7 of 10 significantly older, has faced proceedings for nearly three decades. He appears to be a first-time offender, with no previous criminal record, and no subsequent incident has been reported against him. 13. Taking into consideration the entire conspectus of the matter, it would be apt to rely on the judgement of the Hon’ble Supreme Court in Tarak Nath Keshari V. State of West Bengal, reported in (2023) SCC OnLine SC 605, in which it was held thus: - “11. Even if there is minimum sentence provided in Section 7 of the EC Act, in our opinion, the appellant is entitled to the benefit of probation, the EC Act, being of the year 1955 and the Probation of Offenders Act, 1958 being later. Even if minimum sentence is provided in the EC Act, 1955 the same will not be a hurdle for invoking the applicability of provisions of the Probation of Offenders Act, 1958. Reference can be made to a judgment of this Court in Lakhvir Singh v. The State of Punjab.
Decision
12. The appeal is accordingly disposed of. The appellant is directed to be released on probation under Section 4 of the Probation of Offenders Act, 1958 on entering into bond and two sureties each to ensure that he will maintain peace and good behaviour for the remaining part of his sentence, failing which he can be called upon to serve the sentence.” Page 8 of 10 14. In light of the above considerations, this Court is of the considered view that while the conviction of the appellant under Section 7(1)(b)(ii) of the Essential Commodities Act may not warrant interference, the sentence imposed by the learned trial court is liable to be modified. The object of criminal law is not only to punish but also to reform. Section 4 of the Probation of Offenders Act, 1958, empowers the court to release a convict on probation of good conduct instead of sentencing him to imprisonment, having regard to the nature of the offence and the character of the offender. 15. Considering the age of the appellant at the time of conviction, the prolonged pendency of the matter, the absence of criminal antecedents, and the relatively minor nature of the infraction, this Court deems it just and proper to extend the benefit of Section 4 of the Probation of Offenders Act, 1958, to the appellant. The nature of the offence, though technical and regulatory, does not involve moral turpitude or violence. 16. In such view of the matter, the present Criminal Appeal in so far as the conviction is concerned, is turned down. But instead of sentencing the appellant to suffer imprisonment, this Court directs the Page 9 of 10 appellant to be released under Section 4 of the Probation of Offenders Act for a period of six months on his executing bond of Rs.5,000/- (Rupees Five Thousand) within fifteen days with one surety for the like amount to appear and receive the sentence when called upon during such period and in the meantime, the appellant shall keep peace and good behaviour and he shall remain under the supervision of the concerned Probation Officer during the aforementioned period of six months. 17. Accordingly, the Criminal Appeal is disposed of. (S.S. Mishra) Judge The High Court of Orissa, Cuttack Dated the 31st July, 2025/Subhasis Mohanty Signature Not Verified Digitally Signed Signed by: SUBHASIS MOHANTY Designation: Personal Assistant Reason: Authentication Location: High Court of Orissa, Cuttack. Date: 01-Aug-2025 10:55:49 Page 10 of 10